FILED
NOT FOR PUBLICATION APR 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50073
Plaintiff - Appellee, D.C. No. 3:11-cr-00101-BEN-1
v.
MEMORANDUM*
JOSE RAFAEL ORTIZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted April 11, 2013
Pasadena, California
Before: BERZON, TALLMAN, and M. SMITH, Circuit Judges.
Jose Rafeal Ortiz appeals both his conviction and sentence for attempted
reentry after deportation. 8 U.S.C. § 1326. Ortiz contends that the evidence used
to convict him was obtained in violation of the Fourth Amendment, and therefore
should have been suppressed. Ortiz also claims that he was improperly denied a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
downward sentencing adjustment and that the district court’s chosen sentence was
substantively unreasonable. Because the parties are familiar with the factual and
procedural history of this case, we repeat only those facts necessary to resolve the
issues raised on appeal. We affirm.
Ortiz claims he was stopped and questioned by a Border Patrol agent
without reasonable suspicion. The Supreme Court has articulated a number of
factors that may be considered when deciding whether there is reasonable
suspicion to stop an individual near the border. United States v. Brignoni-Ponce,
422 U.S. 873, 884–85 (1975). For instance, officers may consider “the
characteristics of the area,” including: (1) “[i]ts proximity to the border”; (2) the
“previous experience with alien traffic” in the area; and (3) “information about
recent illegal border crossings in the area.” Id.
Here, all of the factors listed above, combined with additional specific
observations by the Border Patrol agent, indicate that the agent had reasonable
suspicion to stop Ortiz. Ortiz was apprehended thirty yards from the border, in an
area known for alien-smuggling activity, only two to three minutes after a Border
Patrol agent, who had made forty to fifty arrests for illegal entry in that area,
witnessed an illegal border crossing. Further, Ortiz was dressed in the same dark-
over-dark attire as the person the Border Patrol agent saw jump the border fence.
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These were sufficiently particularized and articulable grounds for suspecting Ortiz
of having entered the country illegally.
Ortiz’s sentencing challenges are similarly unavailing. “The Sentencing
Guidelines allow district courts to grant a two-level downward adjustment to a
defendant who ‘clearly demonstrates acceptance of responsibility for his offense.’”
United States v. Ramos-Medina, 706 F.3d 932, 940 (9th Cir. 2012) (quoting
U.S.S.G. § 3E1.1(a)). The defendant “bears the burden of showing that he has
accepted responsibility for his actions.” Id. Our review of the record indicates that
Ortiz cannot meet his burden given that his defense throughout his jury trial was
that the government got the “wrong guy.” The district court did not clearly err in
refusing to award Ortiz a two-level downward adjustment for acceptance of
responsibility. Id. at 942.
Finally, Ortiz claims that his sentence is substantively unreasonable. We
review the substantive reasonableness of a sentence for abuse of discretion. United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district court did
not abuse its discretion here. The court explained that it had considered all of the §
3553(a) factors, and made detailed findings regarding certain factors, such as the
defendant’s prior criminal history. Ortiz’s main argument to the contrary—that the
district judge’s description of the sentence as “adequate” rather than
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“parsimonious” or “not greater than necessary” rendered the sentence
unreasonable—has previously been rejected by this court. United States v.
Rodriguez-Castro, 641 F.3d 1189, 1194 (9th Cir. 2011); see also United States v.
Juan, 704 F.3d 1137, 1143 (9th Cir. 2013) (refusing to “needlessly elevate form
over substance” when reviewing a sentence).
AFFIRMED.
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